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Smith v. Attorney General

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 20, 2009

KENNETH A. SMITH, PETITIONER,
v.
ATTORNEY GENERAL, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner alleges that he is challenging a 2000 conviction from Sacramento County for resisting arrest, assault and battery and battery on an inmate. Petitioner alleges that his plea was obtained as a result of a coerced confession and based on false charges.

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

After reviewing the petition for habeas corpus, it is not clear whether petitioner has exhausted state court remedies. Petitioner states that he presented his claims to the "Sacramento State Division" and "Sacramento California" courts. It is not clear whether his claims have been presented to the California Supreme Court. Accordingly, within ten days of the date of this order, petitioner shall inform the court whether his claims have been presented to the California Supreme Court.

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis;

2. Within ten days of the date of this order, petitioner shall inform the court whether his claims have been presented to the California Supreme Court.

20090720

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